Ronald Dworkin

Religion Without God

Ronald Dworkin (1931 – 2013) was an American philosopher and scholar of constitutional law. His theory of law as integrity, in which judges interpret the law in terms of consistent and communal moral principles, especially justice and fairness, is among the most influential contemporary theories about the nature of law.

Dworkin advocated a ‘moral reading’ of the United States Constitution, and an interpretivist approach to law and morality. He was a frequent commentator on contemporary political and legal issues, particularly those concerning the Supreme Court of the United States, often in the pages of ‘The New York Review of Books.’

Dworkin was born in Providence, Rhode Island. He studied at Harvard and Oxford, where he was a Rhodes Scholar. After completing his final year’s exams at Oxford, the examiners were so impressed with his script that the Chair of Jurisprudence (eminent legal scholar H. L. A. Hart) was summoned to read it. Dworkin then attended Harvard Law School and subsequently clerked for Judge Learned Hand of the United States Court of Appeals for the Second Circuit. Judge Hand would later call Dworkin the finest clerk he ever employed, and Dworkin would recall Judge Hand as an enormously influential mentor.

After working at Sullivan & Cromwell, a prominent law firm in New York City, Dworkin became a Professor of Law at Yale Law School, where he became the holder of the Wesley N. Hohfeld Chair of Jurisprudence. In 1969, Dworkin was appointed to the Chair of Jurisprudence at Oxford, a position in which he succeeded H. L. A. Hart. After retiring from Oxford, Dworkin became the Quain Professor of Jurisprudence at University College London. He then relocated to the US and was the Frank Henry Sommer Professor of Law at New York University School of Law and professor of Philosophy at New York University, where he taught since the late 1970s. He co-taught a colloquium in legal, political, and social philosophy with Thomas Nagel.

Dworkin is most famous for his critique of Hart’s legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality). Dworkin addresses this issue directly in his book ‘Law’s Empire.’ He denies that there can such a generalized theory of law. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.

Dworkin’s theory is ‘interpretive’: the law is whatever follows from a constructive interpretation of the institutional history of the legal system. He argues that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if one’s principles are skewed enough. To discover and apply these principles, courts interpret the legal data (legislation, cases etc.) with a view to articulating an interpretation that best explains and justifies past legal practice. All interpretation must follow, Dworkin argues, from the notion of ‘law as integrity’ to make sense.

Out of the idea that law is ‘interpretive’ in this way, Dworkin argues that in every situation where people’s legal rights are controversial, the best interpretation involves the ‘right answer’ thesis (there is always a ‘right answer’ to every legal question, the problem is in getting to it). Dworkin opposes the notion that judges have a discretion in such difficult cases. His model of legal principles is also connected with Hart’s notion of the Rule of Recognition (rules gains authority through use). Dworkin rejects Hart’s conception of a master rule in every legal system that identifies valid laws, on the basis that this would entail that the process of identifying law must be uncontroversial, whereas (Dworkin argues) people have legal rights even in cases where the correct legal outcome is open to reasonable dispute. While Dworkin moves away from positivism’s separation of law and morality, his concept suggests that the two are related in an epistemic rather than ontological sense as posited by traditional natural law.

The ‘right answer’ thesis was one of Dworkin’s most interesting and controversial because it states that the law as properly interpreted will give an answer. This is not to say that everyone will have the same answer (a consensus of what is ‘right’), or if it did, the answer would not be justified exactly in the same way for every person; rather it means that there will be a necessary answer for each individual if he applies himself correctly to the legal question. For the correct method is that encapsulated by the metaphor of Hercules J. This metaphor of Judge Hercules, an ideal judge, immensely wise and with full knowledge of legal sources. Dworkin does not deny that competent lawyers often disagree on what is the solution to a given case. On the contrary, he claims that they are disagreeing about the right answer to the case, the answer Hercules would give. Dworkin’s critics argue that law is full of gaps and inconsistencies, and other legal standards (including principles) may be insufficient to solve a hard case. Some of them are incommensurable.

Dworkin defends his position saying that non-Herculean judges, much like everyday people, find their way and choose between options and values that were supposed to be incommensurable. Dworkin also argues that it is always possible to find out other rules or principles to solve the conflict between those we had in mind. Dworkin’s metaphor of judge Hercules bears some resemblance to Rawls’ veil of ignorance and Habermas’ ideal speech situation, in that they all suggest idealized methods of arriving at somehow valid normative propositions. The key difference with respect to the former is that Rawls’ veil of ignorance translates from the purely ideal to the practical. In relation to politics in a democratic society, for example, it is a way of saying that those in power should treat the political opposition consistently with how they would like to be treated when in opposition, because their present position offers no guarantee as to what their position will be in the political landscape of the future. Dworkin’s Judge Hercules, on the other hand, is a purely idealized construct, that is if such a figure existed, he would arrive at a right answer in every moral dilemma.

Dworkin’s ‘right answer’ thesis turns on the success of his attack on the skeptical argument that right answers in legal-moral dilemmas cannot be determined. Dworkin’s anti-skeptical argument is essentially that the properties of the skeptic’s claim are analogous to those of substantive moral claims, that is, in asserting that the truth or falsity of ‘legal-moral’ dilemmas cannot be determined, the skeptic makes not a metaphysical claim about the way things are, but a moral claim to the effect that it is, in the face of epistemic uncertainty, unjust to determine legal-moral issues to the detriment of any given individual.

Dworkin has also made important contributions to what is sometimes called the ‘equality of what’ debate. In a famous pair of articles and his book ‘Sovereign Virtue’ he advocates a theory he calls ‘equality of resources.’ This theory combines two key ideas: human beings are responsible for the life choices they make; and natural endowments of intelligence and talent are morally arbitrary and ought not to affect the distribution of resources in society. Like the rest of Dworkin’s work, his theory of equality is underpinned by the core principle that every person is entitled to equal concern and respect in the design of the structure of society. Dworkin’s theory of equality is one variety of so-called ‘luck egalitarianism.’

In the essay ‘Do Values Conflict? A Hedgehog’s Approach,’ Dworkin contends that the values of liberty and equality do not necessarily conflict. He criticizes British philosopher Isaiah Berlin’s conception of liberty as ‘flat’ and proposes a new, ‘dynamic’ conception of liberty, suggesting that one cannot say that one’s liberty is infringed when one is prevented from committing murder. Thus, liberty cannot be said to have been infringed when no wrong has been done. Put in this way, liberty is only liberty to do whatever we wish so long as we do not infringe upon the rights of others.

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